The Strauss Blog

Canada’s New Anti-Spam Law: The basics

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As Canada’s most connected event and association management company we are pleased to publish guest blogs by our partners. This post is written by Brian Bowman, a lawyer with Pitblado Law in Winnipeg, Manitoba.

Various statistics currently peg the cost of Spam at over $100 billion worldwide every year. At present, Canada is the only G8 country without specific Anti-Spam legislation in full force. That’s about to change, however, with the pending implementation of Canada’s new anti-spam law, or “CASL”. The following provides a high level overview, or “the basics”, of what you and your association needs to know about CASL.

CASL will apply to “commercial electronic messages”, which are ones whose “purpose is to encourage participation in a commercial activity”. An “electronic message” has been defined to include e-mail, text, sound, voice and image messages. Senders of commercial electronic messages that are regulated by CASL must now obtain consent to send a message before the message is sent and include certain information in the message.

CASL contains exemptions for messages sent pursuant to broadcasting, family relationships, and in response to an inquiry sent to a person who is engaged in a commercial activity. However, even if CASL applies to an electronic message, there are specific consent exemptions that may still apply. These include things like completing a commercial transaction that has already been agreed to by the recipient or product recall.

If CASL applies and there are no consent exemptions, the sender needs to determine whether consent to receive a message can be implied, or whether express consent is needed.

To obtain express consent, the sender must explain the purpose for which consent is being sought and provide other information, such as the sender’s name and an unsubscribe mechanism. Implied consent does not require any positive action from the sender before a commercial electronic message can be sent, so it’s important to understand the circumstances under which implied consent is appropriate.

The first set of circumstances falls under the term of an “existing business relationship” between the sender and the recipient. An existing business relationship arises when the sender has, for example, received any kind of inquiry from the recipient within the last six months.

The second set of circumstances under which implied consent is appropriate is when a “non-business relationship” exists between the sender and the recipient. This may arise, for example, if the recipient has been a member of the sender during the last two years before the message was sent, and the sender is a club, association or voluntary organization.

CASL contains an administrative penalty regime for contravention of its consent, hacking and spyware provisions, and the penalties can be severe. CASL also contains a private right of action. An offender can be pursued through a private right of action or the administrative penalty scheme, but not both.

While CASL has been passed by Parliament, it is not yet in full force and affect. In the meantime, there are a number of questions that associations should think about in order to prepare for its implementation, such as whether their messages are subject to regulation and what type of consent is required. Contact lists should then be reviewed with a view towards creating an anti-spam law database.

For more information, visit:
Canadian Radio-television and Telecommunications Commission
http://www.crtc.gc.ca

The Office of the Privacy Commissioner of Canada
http://www.priv.gc.ca

Brian Bowman is a partner with Winnipeg’s Pitblado Law who can be reached at (204) 956-3520 or bowman@pitblado.com. And, yes, you can send him an email asking for help with CASL.

The information contained herein is for informational purposes and should not be construed as legal advice.

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